Summary of Opinion: Commonwealth vs. Albert Lewin (No. 2)

Factual and Procedural Background

The defendant, Albert Lewin, was arrested in connection with the fatal shooting of a Boston police officer during the execution of a "no-knock" search warrant at 104 Bellevue Street, Dorchester, on February 17, 1988. After a probable cause hearing in the Brighton District Court on March 9, 1988, the defendant was detained in a holding cell in the lockup area. While detained he approached Court Officers Michael McManus and Paul O'Neill and asked to talk to the assistant district attorney. When told he could not because his attorney was not present, the defendant said, in substance, "Tell them I'll plead guilty to manslaughter. I don't give a shit what happens to me. They can kill me. I don't care."

The court officers did not notify the assistant district attorney of the statement until December 14, 1988, and gave tape-recorded statements the following day. The defendant moved in limine to exclude testimony about the statement. The trial judge allowed the motion and excluded the evidence on two grounds: (1) possible application of Mass. R. Crim. P. 12(f) barring pleas, offers of pleas, and related statements; and (2) the judge's discretionary conclusion that the statement's prejudicial effect outweighed any probative value. The Commonwealth appealed the interlocutory order, and the Supreme Judicial Court reviewed whether the exclusion was a proper exercise of judicial discretion.

Legal Issues Presented

Whether the trial judge erred in excluding the defendant's statement from evidence.
Whether the defendant's statement constituted an inadmissible plea, offer of plea, or related statement under Mass. R. Crim. P. 12(f), 378 Mass. 870 (1979).
Whether the trial judge abused his discretion in excluding the statement on the ground that its prejudicial effect outweighed its probative value.
What standard of review applies to the trial judge's discretionary evidentiary rulings (i.e., whether such rulings are to be upheld except for palpable error).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Commonwealth v. Harvey, 397 Mass. 351, 358-359 (1986)	That a judge has discretion to exclude evidence when its probative worth is outweighed by its prejudicial effect; and citation for standard of review ("except for palpable error").	Cited as part of the consistent line of cases establishing the judge's discretion to exclude evidence on probative vs. prejudicial grounds and as support for affirming the judge's discretionary ruling.
Commonwealth v. Jackson, 388 Mass. 98, 104-105 (1983)	Illustration of the judge's discretion to exclude prejudicial evidence when probative value is outweighed.	Included among authorities showing the established discretionary standard for evidentiary exclusion.
Commonwealth v. Sherry, 386 Mass. 682, 693 (1982)	Support for the principle that judges may exclude evidence when prejudicial effect outweighs probative value.	Used to demonstrate consistent precedent supporting discretionary exclusion of evidence.
Commonwealth v. Jackson, 384 Mass. 572, 578 (1981)	Authority for judicial discretion to exclude evidence on probative vs. prejudicial grounds.	Cited as part of the line of cases upholding such discretionary rulings.
Commonwealth v. D'Agostino, 344 Mass. 276, 279 (1962)	Early precedent supporting exclusion of evidence when prejudicial effect outweighs probative value.	Included to show longstanding precedent for the discretionary rule invoked by the trial judge.
Commonwealth v. Modica, 24 Mass. App. Ct. 334, 342 (1987)	Appellate discussion consistent with the rule permitting exclusion of prejudicial evidence.	Quoted as additional authority supporting the judge's exercise of discretion.
Commonwealth v. Wood, 7 Mass. App. Ct. 455, 459-460 (1979)	Further appellate support for exclusion based on prejudicial effect outweighing probative value.	Used as corroborative authority for the discretionary exclusion doctrine.
Commonwealth v. Young, 382 Mass. 448, 462-463 (1981)	Statement that a judge's decision in this evidentiary area will be upheld "except for palpable error."	Cited to define the standard of review applicable to the trial judge's discretionary ruling; the court applied that standard in reviewing the exclusion.
Commonwealth v. Haywood, 247 Mass. 16, 18 (1923)	Definition of "confession"—that it must be a direct acknowledgement of guilt of the precise crime charged or of all facts necessary to establish guilt of that crime.	Applied to conclude that the defendant's utterance did not amount to a confession under Haywood.
Commonwealth v. Bonomi, 335 Mass. 327, 347 (1957)	Definition of "admission" as a statement by the accused of facts pertinent to the issue that tends, with other proof, to establish guilt.	Referenced in assessing whether the defendant's statement was a clear admission; court concluded it was not clearly an admission under Bonomi.
People v. Friedman, 79 Ill.2d 341, 353 (1980)	Illustration that a jury might place improper weight on an ambiguous statement (supporting concern about prejudicial effect).	Cited to support the conclusion that the statement's prejudicial potential could not be satisfactorily cured by jury instructions.
Commonwealth v. Lewin, 405 Mass. 566 (1989)	Context for the trial judge's special assignment to preside at all proceedings on the indictments in this case.	Used to explain that the judge could draw on his knowledge and experience with the case in balancing probative value against prejudicial effect.

Court's Reasoning and Analysis

The Supreme Judicial Court framed the appeal as review of the trial judge's exclusion of the defendant's statement. The trial judge had excluded the statement on two grounds: (1) potential application of Mass. R. Crim. P. 12(f) barring pleas, offers of pleas, and related statements; and (2) the judge's exercise of discretion finding that the likely prejudicial effect of the statement outweighed any probative value. The Supreme Judicial Court did not reach the Rule 12(f) issue, stating that the judge's discretionary ruling was independently sufficient.

The court reviewed established Massachusetts precedent holding that a judge may exclude evidence when its probative worth is outweighed by its prejudicial effect, and that such discretionary rulings are upheld except for palpable error. The court examined the nature of the statement: "Tell them I'll plead guilty to manslaughter. I don't give a shit what happens to me. They can kill me. I don't care." The court found the statement had little unambiguous probative value. Citing Haywood, the court concluded the statement was not a confession because it did not directly acknowledge guilt of the precise crime charged or all facts necessary to establish guilt. Citing Bonomi, the court concluded the statement was not clearly an admission because it could equally be viewed as an expression of despondency or an irrational outburst upon first contact with the judicial system.

The court emphasized the clear prejudicial potential: the statement could be urged to the jury as an equivalent of an offer to plead guilty, and the jury might improperly give it conclusive weight regarding guilt of first-degree murder. The court noted the difficulty of eliminating that risk through jury instructions and observed that the judge, by special assignment in the case (after Commonwealth v. Lewin), was in a position to evaluate the background, publicity, and context. Balancing the ambiguity and minimal probative value against the substantial prejudicial risk, the judge concluded exclusion was necessary to ensure a fair trial. The Supreme Judicial Court found no palpable error in that exercise of discretion and affirmed the exclusion.

Holding and Implications

Holding: The court affirmed the trial judge's order excluding the defendant's statement. The core ruling is emphasized as follows:

ORDER AFFIRMED

Implications: The direct effect of the decision is that the statement the defendant allegedly made to the court officers is inadmissible at trial under the judge's discretionary ruling that its prejudicial effect outweighed any probative value. The court did not resolve the separate issue under Mass. R. Crim. P. 12(f) and did not announce any new legal precedent beyond reaffirming established principles: judges may exclude evidence on probative-versus-prejudicial grounds and such rulings are reviewed for palpable error. No broader legal rule was created by this opinion beyond applying those existing standards to the facts of this case.

Show full summary ...

COMMONWEALTH vs. ALBERT LEWIN (No. 2).

Homicide. Evidence, Admissions and confessions, Judicial discretion. Practice, Criminal, Judicial discretion.

In a criminal case, the judge correctly exercised his discretion to exclude a certain ambiguous statement of the defendant that was neither a confession nor an admission, where the judge properly concluded that the prejudicial effect the statement might have on the jury outweighed any probative value on the issue of guilt. [631-632]

GREANEY, J.

This is the Commonwealth's appeal from an order of the Superior Court judge assigned the trial of this first-degree murder case. The order allowed the defendant's pretrial motion to exclude from evidence in the trial a statement allegedly made by him to two Suffolk County court officers. A single justice of this court allowed the Commonwealth's request for an interlocutory appeal in view of the other appeals from various orders pertaining to the case which were already pending here. See Mass. R.A.P. 15 (c), 365 Mass. 859 (1974).

The facts found by the judge are as follows. The defendant was arrested for murder and other offenses arising in connection with the fatal shooting of a Boston police officer during the execution of a "no-knock" search warrant at 104 Bellevue Street, Dorchester, on February 17, 1988. After a probable cause hearing in the Brighton District Court on March 9, 1988, the defendant was detained in a holding cell in the lockup area of the courthouse. While so detained, he approached Court Officers Michael McManus and Paul O'Neill and asked to talk to the assistant district attorney. Officer McManus replied that he could not talk to the assistant district attorney because his own attorney was not present. The defendant then said, in substance, "Tell them I'll plead guilty to manslaughter. I don't give a shit what happens to me. They can kill me. I don't care."

The court officers did not notify the assistant district attorney of the defendant's statement until December 14, 1988. The following day, they gave tape-recorded statements detailing the circumstances of the incident.

The defendant moved for an order in limine excluding testimony by the court officers about his statement. After a pretrial hearing, the judge allowed the defendant's motion and excluded the evidence on two grounds which he explained in a written memorandum of decision. First, the judge concluded that, under Mass. R. Crim. P. 12 (f), 378 Mass. 870 (1979), which declares inadmissible evidence of pleas, offers of pleas, and related statements, the defendant's utterances constituted a statement made in connection with a possible plea bargaining offer, and, as such, could not be admitted in evidence. Second, the judge also concluded, in an exercise of discretion, that, because the probative value of the evidence was clearly outweighed by its likely prejudicial effect, the statement should be excluded. We need not consider the first ground for exclusion, based on the possible application of the provisions of rule 12 (f), because the judge's ruling is a proper exercise of his discretion on the second ground relied upon by him.

We have consistently held that a judge has discretion to exclude a particular piece of evidence if the judge concludes that the probative worth of the evidence is outweighed by the prejudicial effect it may have on the jury. See Commonwealth v. Harvey, 397 Mass. 351, 358-359 (1986); Commonwealth v. Jackson, 388 Mass. 98, 104-105 (1983); Commonwealth v. Sherry, 386 Mass. 682, 693 (1982); Commonwealth v. Jackson, 384 Mass. 572, 578 (1981); Commonwealth v. D'Agostino, 344 Mass. 276, 279 (1962). See also Commonwealth v. Modica, 24 Mass. App. Ct. 334, 342 (1987); Commonwealth v. Wood, 7 Mass. App. Ct. 455, 459-460 (1979). We have also indicated that a judge's decision in this area will be upheld "except for palpable error." Commonwealth v. Young, 382 Mass. 448, 462-463 (1981). See Commonwealth v. Harvey, supra at 359.

The evidence here had little unambiguous probative value. The defendant's statement — "Tell them I'll plead guilty to manslaughter" — did not amount to a confession because it is neither "a direct acknowledgement of guilt of the precise crime charged [n]or of all facts necessary to establish guilt of that crime." P.J. Liacos, Massachusetts Evidence, 296-297 (5th ed. 1981). See Commonwealth v. Haywood, 247 Mass. 16, 18 (1923). The statement is not clearly an admission either. "An admission in a criminal case is a statement by the accused, direct or implied, of facts pertinent to the issue, which although insufficient in itself to warrant a conviction tends in connection with proof of other facts to establish his guilt." Commonwealth v. Bonomi, 335 Mass. 327, 347 (1957). The statement suggested the possibility of plea bargaining as to manslaughter, a lesser-included offense of one of the crimes with which the defendant was charged. While the statement could be argued as having some features of an admission, it could also be characterized as simply an expression of the defendant's despondency. This latter consideration is emphasized by the defendant's added exclamations — "I don't give a shit what happens to me. They can kill me. I don't care." The judge noted this inherent ambiguity. As the judge stated: "Although it can be conceivably viewed as an admission of guilt, the defendant's statement . . . is just as plausibly an irrational outburst resulting from his first contact with the judicial system."

There is no question that the statement was prejudicial. The statement could be vigorously urged to the jury at trial as constituting the equivalent of an offer to plead guilty to the homicide. The jury in turn might give the statement, notwithstanding its ambiguity, conclusive effect on the issue of his guilt of murder in the first degree. The likelihood that the jury might place improper weight on the statement was therefore considerable, see People v. Friedman, 79 Ill.2d 341, 353 (1980), and posed a problem which was not capable of being resolved in a satisfactory manner by instructions to the jury on how they should evaluate the evidence. Finally, the judge could have considered that the utterances were made by the defendant held in detention after the completion of a lengthy probable cause hearing in a case which had generated wide and (for the defendant) unfavorable publicity. That the background of the case, and the context in which the statement was made, were known to the judge derives from his special assignment, after our decision in Commonwealth v. Lewin, 405 Mass. 566 (1989), to preside at all proceedings on the indictments. The judge could draw on his knowledge and particular experiences with the case in balancing the factors of probative value and prejudicial effect and in deciding whether exclusion of the evidence was necessary in the interests of a fair trial. The judge concluded: "The questionable probative value that the defendant's statement thus carries on the issue of guilt is outweighed by the undeniable prejudicial effect it would have if heard by a jury." We cannot say that this determination is palpably wrong. Commonwealth v. Harvey, supra at 359.

The order allowing the defendant's motion to exclude the defendant's statements is affirmed.

So ordered.

COMMONWEALTH v. LEWIN (NO. 2)